Giberti and Rollins and Anor

[2017] FamCA 303

FAMILY COURT OF AUSTRALIA

GIBERTI & ROLLINS AND ANOR [2017] FamCA 303

FAMILY LAW – CHILDREN – PARENTING – Interim proceedings – Best interests of the child – Where the paternal grandfather seeks orders that he spend time with the child – Where the father supports the orders sought by the paternal grandfather – Where the mother opposes the child spending time with the paternal grandfather – Where the mother alleges that the paternal grandfather poses an unacceptable risk of harm to the child – Where the paternal grandfather is not an unacceptable risk of harm to the child – Where there is insufficient evidence to make an order for the paternal grandfather to spend time with the child – Application dismissed.

Family Law Act 1975 (Cth) ss 60CA, 60CC

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT: Ms Giberti

RESPONDENT: Mr Rollins

INTERVENOR: Mr A Rollins

INDEPENDENT CHILDREN’S LAWYER: Dignan & Hanrahan Solicitors

FILE NUMBER: PAC 2873 of 2009

DATE DELIVERED: 15 May 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 6 March 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Rafton Family Lawyers

SOLICITOR FOR THE RESPONDENT: AJ Associate Lawyers

SOLICITOR FOR THE INTERVENOR: Shore Stack Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dignan & Hanrahan Solicitors

Orders

1. That the intervenor’s application for interim parenting orders in his Response to an Initiating Application filed 29 September 2016 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Giberti & Rollins and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2873  of 2009

Ms Giberti

Applicant

And

Mr Rollins

First Respondent

And

Mr A Rollins
Second Respondent

REASONS FOR JUDGMENT

Introduction

1. B (“the child”) is a boy of nine who has an autism spectrum disorder. His parents who separated in about March 2009 after a relationship of some years have been involved in a protracted parenting dispute for much of the child’s life.

2. Final orders in relation to the child’s parenting were made in the Federal Magistrates Court as it was then known in September 2012. Pursuant to these orders the child lived with his mother during the week and with his father on weekends.

3. In August 2016 the mother commenced proceedings in this Court seeking to vary the parenting orders. She seeks orders that would see her have sole parental responsibility for the child who would live with her and spend no time with his father. The father seeks interim and final orders that the parents have equal shared parental responsibility for the child, that the child live with the mother and spend defined time with him.

4. The child’s grandfather (‘the grandfather”) was joined as a party to the proceedings in September 2016.

5. The child has not spent time with his father or grandfather since June 2016.

6. In this application the grandfather seeks an order that he spent time with the child for an eight hour period on one day each month. He also proposes that the father be restrained from being present when he is spending time with the child.

7. The father supports the grandfather’s application but it is opposed by the mother. The independent children’s lawyer (ICL) does not oppose the order sought by the grandfather subject to there being an additional injunction restraining the grandfather from using illicit substances when spending time with the child.

8. The question for me to determine is whether it is in the best interests of the child for an order to be made as sought by the grandfather for the grandfather to spend time with the child on an interim basis.

background

1. The mother who is 31 and the father who is 35 commenced a relationship sometime between about 2003 and 2005. Their only child who is the subject of these proceedings was born in 2008.

2. The parties ended their relationship when the child was about one year old.  The child continued to live with the mother following separation.

3. The grandfather and his wife who has since died had a good relationship with the child from a young age. He and his wife continued to spend time with the child at their home or on outings from about the time the parents separated by agreement with the mother.

4. The child was diagnosed with Autism spectrum disorder when he was three years old.

5. Under the first parenting orders which were made in September 2012 the child lived with his mother during the week and with his father on weekend.  There were also specific orders in relation to school holiday time and time on special occasions with the father.  The parents have equal shared parental responsibility for the child under those orders.

6. The parents have always had a volatile relationship and various apprehended domestic violence orders (‘ADVOs’) have been made over the years for the protection of the mother against the father. One such order made by a Local Court in 2012 for five years remains in force until 24 May 2017.

7. On 15 February 2014 a provisional apprehended violence order (‘AVO’) was obtained by police against the grandfather for the protection of the mother. The application upon which that order was made records that on 14 February 2014 the grandfather attended his weekly appointment with a medical practitioner who treated him for heroin and cannabis dependence.  In the course of the appointment, the grandfather told the treating doctor “if the family law court does not rule in favour of [me] [I], will kill two people”.  According to the application the grandfather made it very clear that one of the people to be killed would be the mother. The treating doctor formed the impression that the threat to kill the other person may have been directed to himself.  As the grandfather raised other concerns about the child the doctor as a mandatory reporter reported the grandfather’s comments to police and the Department of Family and Community Services (“Community Services”). The mother was not aware of the remarks said to have been made by the grandfather until she received a copy of the provisional AVO made for her protection which restrained the grandfather from approaching or contacting her by any means.

8. Subsequently a final order AVO for two years was made for the protection of the mother which expired in February 2016. The terms of the final AVO are unknown but it is not in dispute that the grandfather continued to communicate with the mother after the order was made. 

9. In April 2014 the mother gave birth to a second child who also has disabilities which required a prolonged period in hospital following that child’s birth.  At that time the child in these proceedings lived with his father for at least six weeks at the grandfather’s home.

10. The paternal grandmother died in 2014. The father was apparently very distressed by his mother’s death and began using illicit drugs as a coping mechanism. The relationship between the grandfather and the father also deteriorated from around this time.

11. The father who had been living with the grandfather was asked to leave the grandfather’s home following an incident in May 2015 in which the grandfather says the father was drunk and aggressive and police were called.

12. After the father left the grandfather’s home, the mother and grandfather continued to have some form of relationship as is evidenced by text messages exchanged between them expressing concern about the father’s conduct. Text messages exchanged between the two in May 2015 confirm that both the grandfather and mother had concerns that the father had returned to alcohol and drug misuse. Some level of communication continued between the mother and grandfather from May 2015 to October 2015 though it is not clear whether the child continued to spend time with the grandfather throughout this period.

13. Although the grandfather does not say when this occurred he and the father reconciled their relationship though the father has not returned to live with the grandfather.

14. The grandfather sold his home in about October 2015 and moved to live with his sister in a self-contained unit at her home.

15. In June 2016 following alleged disclosures made by the child that the father had physically and sexually abused him the mother stopped making the child available to spend time with his father and the grandfather.

16. In August 2016 the mother commenced proceedings in this court seeking to vary the parenting orders. She proposes orders that would see her have sole parental responsibility for the child who would live with her and spend no time with his father. The mother’s contention that these orders are in the best interests of the child rely upon allegations she makes that the father physically and sexually abused the child, engages in alcohol and drug abuse that significantly impact upon his parenting capacity and that the father poses an unacceptable risk of emotional and psychological harm to the child.

17. The father denies all of the mother’s allegations.

Matters in Dispute

1. The mother’s opposition to the grandfather’s application to spend time with the child is based upon her contentions that the grandfather poses an unacceptable risk to the child on a number of grounds. Each of the allegations of risk said to be posed by the grandfather relate to matters in dispute between the parties.

2. First the mother contends that there is an unacceptable risk that the child may be sexually abused as a result of the grandfather’s inappropriate sexual conduct towards the child and the grandfather’s failure to act protectively in relation to the child when the father was living in his home and allegedly sexually abused the child.

3. So far as the alleged conduct of the grandfather himself is concerned the mother deposes to him engaging in inappropriate conduct when he had some involvement in toilet training the child.  She also deposes to other occasions when she says the grandfather showered with the child when the child was three to four years of age and behaved in a sexualised manner around the child such as kissing the child on the lips on occasions. The grandfather does not deny having some physical involvement in toilet training the child and agrees that on occasions he did kiss the child on the lips but denies doing anything inappropriate of a sexual nature.  The grandfather also says that the mother’s allegation that he had done something untoward in relation to toilet training was first made by the mother 12 months after a specific incident that the grandfather had reported himself to the mother.

4. The mother also deposes to the father in the presence of the grandfather playing with the child in an inappropriately sexualised manner. She says the father played a game in which he slapped the child’s penis and another game where the father would try to bite the child on the bottom.

5. According to the mother’s affidavit the grandfather would “defend the game” maintaining that it was a game the father used to play when he was a child. She also deposes to an occasion when the child was four to five years old and returned to her after being in the care of the father with a fake tattoo on his bottom. The mother says there was also one occasion when the child was very young and returned from time with his father when living in the grandfather’s home with a purple swollen penis.

6. The grandfather denies any recollection of an occasion on which the child had a purple swollen penis.  He also denies being aware of any untoward conduct by the father towards the child when the two were in his presence.

7. The mother’s allegations concerning the factual matters from which the risk of harm is said to arise cannot obviously be resolved at this interim stage. However, the authorities make it clear[1] that the court may have some regard to the matters in dispute and a court is required to make an assessment of alleged risk made by a party.   

   [1]George & George [2013] FamCAFC 182; SS & AH [2010] FamCAFC 13.

8. In Deiter & Dieter[2] the Court was particularly concerned with the situation where the contested facts related to an assessment of risk.  The Full Court said at [61]:

   Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

   [2] [2011] FamCAFC 82.

9. As I understand the grandfather’s case he sees the mother’s main concerns about risk of harm associated with sexual abuse of the child as being posed by the father.  He also denies any allegations of sexual abuse perpetrated by him.

10. A consideration of both the likelihood of the alleged events occurring and magnitude of harm with respect to the grandfather’s conduct in relation to toilet training or kissing the child does not in my view give rise to an unacceptable risk on this basis.

11. The other more serious allegations of sexual abuse made by the mother concern the father’s conduct.  These allegations while denied by the father are of a much more serious nature being that the father sexually assaulted the child.  If these events had occurred, clearly the severity of their impact would be such to give rise to an unacceptable risk of harm posed by the father.  If it were also proved that the grandfather was aware of the father’s sexual abuse towards the child and failed to act protectively, concerns about an unacceptable risk posed by the grandfather may also arise. 

12. As I understand the grandfather’s case he proposes to mitigate any unacceptable risk posed by the father by seeking orders restraining him from allowing contact between the child and the father and restraining the father from being present when the child is to spend time with the grandfather. 

The law & discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[3].

   [3] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346.

2. In applying the law to the facts, the Court must uphold the relevant Objects and Principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the children are met in particular ways. Relevantly, these include “protecting children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.”

3. The principles underlying these objects include that:

   children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

5. In Deiter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the child under consideration. 

6. At the time this application was heard, the proceedings had been on foot for some months and the child had not spent time with his father or grandfather for nine months.  At that stage the family had not yet participated in the Child Responsive Program or been interviewed by a Family Consultant and it may be expected that the interim arrangement in place as a result of this application will endure for many months.  In terms of this application, this may mean that the child may continue to be effectively deprived of his relationship with his grandfather during that period of time.

7. The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.

Best interests considerations: s 60CC

1. The primary considerations, which are contained in subsection (2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the consideration set out in subsection (2)(b).

3. The primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents is not relevant to this application.  It is not proposed that the current parenting arrangement by which the child lives with his mother and spends no time with his father is to be altered by the making of an order with respect to the grandfather’s time with the child. The proposed order includes a restraint upon the father coming into contact with the child and this proposed order is consented to and supported by the father.

4. However, the need to protect the child from physical or psychological harm from being subjected to abuse does arise in this application. 

5. For the reasons given earlier, I am not of the view that the grandfather’s conduct as alleged by the mother gives rise to an unacceptable risk posed by him that he may sexually abuse the child. 

6. Although there are some concerns about the grandfather’s protective capacity especially as it is alleged that the father engaged in sexually abusive conduct towards the child of which the grandfather is said to be aware, this risk in my view is mitigated by the grandfather’s proposal that there be a restraint upon the father coming into contact with the child.

The additional consideration: s 60CC(3)

Any views expressed by the child

1. The child had not been interviewed by a Family Consultant and expressed any view in relation to spending time with his grandfather when the application was made. 

The nature of the relationship of the child with each of their parents, and other significant persons

1. The only relevant relationship to be considered under this consideration is the nature of the child’s relationship with his grandfather. 

2. As I understand the evidence there is no dispute that the grandfather previously played a significant role in the child’s life which included taking the child on outings and at times having the child live in the grandfather’s household including for a period of six weeks around the birth of the mother’s second child.  However, the child has not spent any time with his grandfather in the last nine months and the time between the two ceased in circumstances where the mother alleges the child made disclosures to her that the father had sexually abused him. This occurred at a time where it appears the grandfather and father had reconciled and both were taking a common position in denying the allegations.  The impact of ceasing contact with the grandfather particularly in these circumstances upon the grandfather’s relationship with the child is unknown. 

1. The child has been diagnosed with autism spectrum disorder and according to the psychology report attached to the mother’s affidavit, when assessed albeit in September 2011, the child showed poor social skills and difficulties in relating and communication which may be relevant to an assessment of the current state of the relationship between the child and his grandfather.

Likely effect of any change in the child’s circumstances

1. Although the proposal of the grandfather will not bring about a change in residence or any other significant change in the child’s circumstances (as he proposes to spend time with the child on one day each month) for a child with autism spectrum disorder who has not seen his grandfather for around nine months, this does represent a change in circumstances.  In particular the grandfather proposes in his application that the child spend an eight hour period with him each month which may be experienced as a significant separation from the child’s mother. 

2. Depending upon the awareness the child has about the mother’s concerns about the grandfather and the current alignment of the grandfather with the father in the proceedings, the child’s own fears may be heightened by being required to spend time with the grandfather for such a lengthy period even it if is only to occur one day per month. 

3. In my view having regard to the child’s autism and in the absence of any expert evidence, it is appropriate to take a cautious approach about the effect upon the child of the changes that would be brought about if the orders sought by the grandfather were made.

Capacity of each parent and other persons to provide for the child’s needs, including emotional and intellectual needs

1. At the time the application was made I did not have the benefit of any form of expert evidence including even a preliminary assessment by the Family Consultant to provide assistance in relation to this matter.  The relevant issue to consider is the capacity of the grandfather to meet the child’s needs in light of the particular application he makes that he spend one day per month with the child.

2. The mother raises concerns about the grandfather’s capacity given his dependence upon methadone and her concerns that he may also have returned to cannabis use. 

3. The mother did not appear to be particularly concerned about the grandfather’s stability arising from the threats he made towards her in the past which founded the ADVO as after it was made she agreed to the child living in the grandfather’s household for at least six weeks. However, in my view some concerns do arise in relation to the grandfather’s capacity to care for the child appropriately as a result of his substance use.  The grandfather is proposing under the orders he seeks to be the sole carer for the child over an eight hour period.  Although he appears to rely on his proven capacity in the past, there is no evidence about the support that may be provided currently by other extended family members, nor is there objective evidence about this current substance misuse or expert evidence in relation to his capacity to meet the child’s needs.

Relevant characteristics of the child

1. As previous indicated when discussing other considerations, the child’s diagnosis of autism spectrum disorder and characteristics of that diagnosis are relevant to this application.

Family violence

1. There has been an ADVO for the protection of the mother against the grandfather which expired in February 2016.  For the reasons discussed earlier, although the mother did not seek the order at the time there is some level of risk posed by the conduct of the grandfather which in my view gives rise to concern and is relevant to this application.  The grandfather made threats of a very serious order sufficiently concerning that a mandatory reporter reported them to police and Community Services.  The risk posed by the grandfather has not been assessed by any expert at the time this application was made.

Any other fact or circumstance the Court thinks relevant

1. In my view, it is a relevant factor that at the time this application was made the family had not been assessed even at a preliminary level by a Family Consultant which creates difficulties in applying relevant best interest considerations to untested affidavits filed by each of the parties.

Conclusion

1. As discussed, when considering each of the relevant matters in section 60CC, there is no evidence of the current nature of the relationship of the child with his grandfather and the likely effect of introducing an eight hour period of time with the grandfather each month when the two have not spent time together for nine months.  This is especially a matter that is approached with caution having regard to the child’s diagnosis of autism spectrum disorder and the circumstances in which the mother ceased contact between the child and his grandfather.  In these circumstances there is insufficient evidence upon which I can positively find that it is in the best interest of the child to spend time with his grandfather as proposed. 

2. Accordingly the grandfather’s application is dismissed.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 15 May 2017.

Legal Associate: 

Date:  15 May 2017